Castaneda-Castillo v. Gonzales

• Citation: 464 F.3d 112
• Decision Date: 29 September 2006
• Docket Number: No. 05-2384.,05-2384.
• Parties: David Eduardo CASTAÑEDA-CASTILLO; Carmen Julia De La Cruz-Castañeda; Piera Dina Castañeda; Pía Maribel Castañeda, Petitioners v. Alberto R. GONZÁLES, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

464 F.3d 112

David Eduardo CASTAÑEDA-CASTILLO; Carmen Julia De La Cruz-Castañeda; Piera Dina Castañeda; Pía Maribel Castañeda, Petitioners v. Alberto R. GONZÁLES, Attorney General of the United States, Respondent.

No. 05-2384.

United States Court of Appeals, First Circuit.

Heard April 5, 2006.

Decided September 29, 2006.

William P. Joyce, with whom Joyce & Associates, P.C. was on brief, for petitioners.

Robbin K. Blaya, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Peter Keisler, Assistant Attorney General, and Greg D. Mack, Senior Litigation Counsel, were on brief, for respondent.

Before TORRUELLA, Circuit Judge, HUG,^* Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Circuit Judge.

Petitioners David Eduardo Castañeda-Castillo ("Castañeda"), his wife, and two daughters¹ ask us to review a decision of the Board of Immigration Appeals ("BIA") denying their applications for asylum and withholding of removal. The BIA based its decision on a finding that the petitioners were barred from being granted asylum or withholding of removal because Castañeda had assisted or otherwise participated in the persecution of others on the basis of their political opinion. See 8 U.S.C. §§ 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i). After careful review, we grant the petition for review and reverse the decision of the BIA.

I. Facts and Procedural Background²

Castañeda is a native and citizen of Perú and was an officer in the Peruvian army. He and his family entered the United States with tourist visas at Miami, Florida, on August 19, 1991. They overstayed, and Castañeda applied for asylum in January 1993, claiming that he and his family had been persecuted by the terrorist group Sendero Luminoso ("Shining Path") while they were in Perú.³ Castañeda was interviewed at the Immigration and Naturalization Service's ("INS")⁴ asylum office on May 19, 1999. The asylum officer referred the application to an Immigration Judge after finding that Castañeda had not met his burden of proof for establishing eligibility for asylum. On July 7, 1999, the INS issued Notices to Appear ("NTA") to Castañeda and his family, charging them with removability under Section 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States for a time longer than permitted.

Beginning February 16, 2000, Castañeda and his family appeared at twelve different hearings before two different Immigration Judges.⁵ Castañeda was the only person to testify at the hearings.⁶ We glean the following facts from his testimony and the evidence presented at the hearings.

Castañeda joined the Peruvian military in 1979. In 1983, upon graduation from military academy, he was commissioned as a second lieutenant and assigned to a motorized infantry battalion. His original duties included teaching military training, such as the use of weaponry, handling of prisoners, community service, and guarding equipment. After twelve months, Castañeda was transferred to another unit in Tumbes, a region in northern Perú near the border with Ecuador. Castañeda testified that, during this time, the military was fighting the Shining Path. Most of this fighting, however, occurred in the Ayacucho region in the Andes, approximately 400 miles to the south of Tumbes. While at Tumbes, Castañeda was a platoon commander and his duties included training and instructing the men in his section.

In January 1985, Castañeda was transferred to Battalion 34, an anti-terrorist battalion. Battalion 34 was located in the Ayacucho region, which is the birthplace of the Shining Path, and was referred to as the "emergency zone" due to the Shining Path's presence in the region.⁷ The battalion was divided into different bases. Each base was led by a captain or lieutenant. According to Castañeda, each base had around forty men. Castañeda's responsibilities increased in Battalion 34, as his duties included both training and leading troops out on patrols. Upon his arrival at Battalion 34, Castañeda was assigned to a base in Sacchaeamba, a rural mountainous area. Castañeda was the head of a twenty-man patrol, and went out on his first patrol one day after arriving at Sacchaeamba.

Castañeda testified that a major whose code name was Wolf instructed him on what areas to patrol. Wolf, who was not at Castañeda's base, would communicate the patrol area to the commander of the base by radio. The base commander would then relay that information to Castañeda. Castañeda testified that, at times, the patrol route was very specific, while at other times the patrol route was general and it was left up to Castañeda to decide the route. Castañeda also testified that his patrol sometimes operated independently of other patrols, while at other times his patrol's movements were coordinated with the movements of other patrols.

Castañeda testified that when he was on an independent patrol his base commander would inform him of other patrols' positions via radio in order to avoid overlapping. He also testified that he sometimes made direct radio contact with other patrols, and that it was important to know the location of other patrols in the area in order to coordinate movement.⁸ When there were several patrols conducting a mission, Castañeda testified that each patrol leader responded to his base commander, who in turn responded to the battalion commander, who coordinated the mission with other base commanders.

According to Castañeda, before going out on any patrol, he was briefed on the mission of the patrol by the base commander. He was given an order that explained the situation on the ground, the possible location of the enemy, what the patrol would be doing on the mission, what route to take, and what equipment to carry. If, while on patrol, one of his men was injured, Castañeda was instructed to radio the base so that the man could be evacuated. He also had flares in the event that radio communication was down. Castañeda testified that at times he had difficulty making radio contact due to interference caused by the dense terrain.

There were two types of patrols, combat and reconnaissance. Combat patrols engaged the enemy, while reconnaissance patrols gathered information. Most of the patrols were conducted at night in order to avoid detection by the Shining Path. Castañeda testified that if, while on a reconnaissance patrol, he received intelligence that the Shining Path was in the area, he would immediately radio the base commander for instructions on what action to take. He could not engage the enemy without approval from his commander unless the patrol was being attacked or was in some sort of danger. Castañeda testified that, during his time at Sacchaeamba, he went on approximately twenty-five patrols, most of them reconnaissance. He never had any direct contact with the Shining Path.

Sometime in June or July of 1985, Castañeda, while still in Battalion 34, was transferred to a base in Vilcashuan, where he remained the head of a patrol. He testified that the procedures and missions were the same as they had been at the base in Sacchaeamba.

Castañeda further testified that he was involved in a significant operation (the "Operation") in August 1985, about a month after he arrived at the base in Vilcashuan. The Operation involved four patrols. Two patrols, code-named Links 6 and Links 7, were to enter a village named Llocllapampa in the Accomarca zone⁹ to search for Shining Path members. Links 7 was led by Sub-Lieutenant Telmo Hurtado ("Hurtado"), and Links 6 was led by Lieutenant Riveri Rondón ("Rondón"). Two other patrols were assigned to block escape routes from the village.¹⁰ Castañeda led one of these blocking patrols, code-named Tiger. Castañeda could not remember the name of the leader of the other blocking patrol, code-named Wolf. According to Castañeda, he received his orders a few hours before his patrol left from his base commander, who received them from the command of the division located in the city of Humanaga. Castañeda testified that he was briefed on the mission of the other patrols before he left. He was told that there were between forty and sixty Shining Path guerrillas in the village. Castañeda's patrol took vehicles part of the way and went on foot the rest of the way. Castañeda and his men were armed with machine guns and a rocket launcher. They wore Peruvian military uniforms and also had masks on, both to avoid recognition by the Shining Path and to keep their faces warm. One of Castañeda's men had a radio to contact their base commander. Castañeda testified that he was near his radio operator during the Operation.

Castañeda's patrol was the first to arrive at its destination. Once at the assigned location, which was three to five miles away from the village, Castañeda separated his men into three groups. They hid themselves about thirty meters from different sides of the path. Castañeda testified that he was the one who would have made the decision whether to open fire if anyone came down the path. He testified that he was in radio contact with his base commander, who relayed any information Castañeda provided back to the division headquarters. Castañeda testified that he was not informed when the other patrols were ready to attack and he did not know when the attack began. Castañeda testified that he was only able to communicate with his base; he did not have the frequencies for any of the other patrols and therefore could not hear any of their communications.¹¹ Castañeda also stated that none of the other patrols had his frequency, although each of the two attacking patrols had the other's frequency.

Apparently, the Wolf blocking patrol got lost and never reached its assigned destination. Castañeda testified that the two other patrols, Links 6 and 7, entered the village and massacred civilians.¹² A subsequent report by a Peruvian Senate Human Rights Commission ("Human...